A writer whose plot involves domestic abuse posed several questions.
Consider this scenario: A woman is in a violent marriage that’s getting worse. Her husband assaults her one night and is arrested. At his initial appearance in court the next morning, bond is set at $1,000. He posts bond by credit card and after spending one night in jail, goes home. Later, as a condition of a plea agreement, he agrees to attend anger management classes and AA. His wife reconciles with him, but is angry with her family and friends for making clear that they do not trust him and think she should leave him. As a result, she becomes more isolated, and one night, when he decides he’s tired of the wagon, of people telling him what to do, and of her disapproval, he drinks a half-rack of beer and most of a fifth of whiskey and beats her badly. The oldest child, just twelve, calls 911, and police and EMTs respond. She’s taken to the hospital, he’s taken to jail, and the kids are taken to a neighbor’s house to wait for their grandparents to arrive from out of town.
What’s going on, and what’s next?
Pre-trial release: The amount of bail and other terms will depend on the charges and circumstances. In this scenario, the charge is probably a misdemeanor and a first offense. Potential charges in domestic violence vary widely, depending on the facts. Some are misdemeanors, others are felonies of several types, each with its own elements–the minimum facts that must be proven in court. Terms also vary: is it partner assault, domestic assault, family assault, simple or aggravated, first or second degree, or something else? Check the law in your story state.
Many factors affect pre-trial release, but the amount of the bail bond might be low if the victim isn’t seriously injured, the accused is particularly contrite, and no drugs, alcohol, or weapons are involved. Another factor is whether the accused has a steady job and ties to the community–not because that makes him less culpable, but because the primary purpose of bail is to ensure that a defendant shows up for later court appearances and those ties make him less of a flight risk.
And yes, some courts do indeed accept credit cards.
Release on bond typically involves numerous conditions. The main condition: no contact with the victim. But if she tells the prosecutor she doesn’t want that–that she’s sure it won’t happen again, he’s really a good man but was upset over a problem at work or with one of the kids or she made him mad–the prosecutor won’t request that condition, because it’s clear she wouldn’t honor it. And the prosecutor wants her trust–there’s no point alienating the victim. If she’s in court, the judge might ask her if she wants him ordered to stay away. Some women genuinely believe the problem won’t recur. Others fear that a no-contact order would just make things worse. Some want limited involvement with police, courts, or government agencies for their own reasons; some fear the possibility of a Child Protective Services investigation; and others worry about finances or keeping their children from their father. Other typical conditions of release: refrain from drinking or using drugs, attend AA or NA, make all court appearances, and cause no further trouble.
Protective orders: I want to distinguish between a no-contact order issued after criminal charges have been filed or after a criminal conviction and a protective order. The purpose of a p.o. is to prevent future violence. According to the American Bar Association Commission on Domestic Violence survey of recent statistics (including prevalence, stalking, same-sex violence, recidivism, and workplace violence, as well as breakdowns by race, ethnicity, and age), 86% of women who received a protection order state the abuse either stopped or was greatly reduced.
The requirements and terms depend on the law in your story state, but a p.o. typically requires a showing that violence has occurred in the past and could occur in the future. (See the ABA’s state-by-state summary of statutes and resources for survivors and attorneys.)
A protective order does not require criminal charges or a criminal conviction. Common terms prohibit contact with the applicant and any minor children, including phone calls and emails as well as physical contact, harassment, and going to or near a school or day care that a minor child attends or to an adult’s work place or church. Protective orders may also prohibit use or transfer of real or personal property, and in some states, can be used to establish temporary child support. The person to be protected must apply for the order by going to the local prosecutor, legal aid office, or court–usually justice court. You can’t get a p.o. for someone else, except that a parent may obtain a p.o. covering minor children. A violation doesn’t trigger arrest; the person who obtained the order must go to court to request that the person restrained be found in contempt and fined or jailed.
All too often–again, because of the complicated relationships–the person getting the order ignores violations, or ignores it herself, which makes later enforcement much harder.
(Next week, I’ll go into more detail on protective orders.)
Going to trial: So charges are filed and the case is set for trial. Cooperation problems can crop up again. If a victim refuses to testify or threatens to recant her story, then prosecutors must weigh the evidence and decide whether they have enough to make the case without her testimony. Police investigation, eyewitness testimony, and medical reports may be enough–especially with photographs. Jurors will wonder why they’re not hearing from the victim, but most will be savvy enough to figure it out.
It’s not uncommon for a woman to testify at trial and recant her prior reports of violence. Some courts allow experts, such as social workers or psychologists working in the field of domestic violence, to testify that this is typical behavior. The expert can’t comment on the witness’s credibility or say that she was actually assaulted–both are decisions for the jury–but can offer a explanation for inconsistencies in testimony.
Note that the spousal privilege does not apply in criminal cases involving charges of violence against a spouse or the minor children of either spouse.
Sentencing: As I mentioned previously, the charges possible in domestic violence vary widely. So do the sentencing ranges and options. Some states give courts a wide degree of discretion in sentencing; others dictate mandatory minimums and establish aggravating factors. The particular circumstances are critical. What happened? What injuries occurred? First offense or repeat? Was a weapon involved? What about drugs or alcohol? Were both partners violent, or just one? Some couples develop a relationship based on mutual abuse and violence, making intervention much harder, and complicating the legal situation.
Suspended sentences are common, either on a plea agreement or after a conviction at trial. Release will include extensive conditions, such as successful completion of a drug or alcohol treatment program, anger management sessions, and restitution.
Other options: What do prosecutors do when faced with a woman who needs the financial support her husband or partner provides to care for herself and their kids? This is a tough one. The biggest problem prosecutors face is lack of cooperation from the victim. Because of the complicated emotional situation in abusive relationships, many women are reluctant to end these relationships. Often, the victim doesn’t want the man jailed–she just wants the violence to stop. If an assault has caused serious injuries, it’s hard for a prosecutor to accept a plea agreement that doesn’t involve jail time. A typical solution is a plea agreement with a sentence length appropriate under the statutes and circumstances, but with most of the time suspended. That way, the defendant serves some time in prison but will be released with supervision by local probation officers. If he violates the terms of his release, or commits another assault, he can be charged with violating those terms as well as for any new crimes–a strong incentive to keep one’s nose clean.
Prosecutors often refer victims to social services. These run the gamut, from counseling services to assistance with food and housing to organizations that supervise visitation or transfer of children between estranged or hostile parents.
The “battered wife defense:” Some women strike back. The “battered wife defense” to a homicide charge is a variation of self-defense, and requires proof that the accused was in imminent danger, and that her own actions were intended to protect herself.
Another important resource: National Coalition Against Domestic Violence
Out of great pain can come great beauty. In 2002, Whitefish, Montana artist Jane Latus Emmert’s youngest sister was murdered by her boyfriend. In her grief, Jane asked for comfort and saw in the clouds a vision of an angel blowing a trumpet. She began painting angels, writing poems to accompany some images, and now uses her “Angel Cloud Art” paintings, notecards, and books to increase awareness of domestic violence and raise funds for group work.
Nothing on this site is intended as legal advice, and should not be relied on in handling “real world” legal problems. All information provided is intended solely for use by writers devising fictional plots.
Keep in mind that because laws and procedures vary widely and sometimes change, you should check the status of any law that affects key elements of your story.
Detailed, elaborated facts as always. Thanks, Leslie.
Excellent information, Leslie. Some years ago I had the privilege of working on He Promised He’d Stop, by Michael Groetsch, a senior probation officer, who profiled many different types of batterers–a wealth of material for writers in portraying their characters just right. What surprised me the most were the dynamics operating in the judicial system. A great many judges tend to see all batterers as sharing the same characteristics, which frequently blinds those judges to a batterer’s manipulations and leads to their ordering remedies that are most inappropriate for the individual batterer. I believe this book is an important resource for all writers–as is yours, Leslie–and I recommend both on my website. When my own books for writers, Don’t Murder Your Mystery and Don’t Sabotage Your Submission are reprinted, I’ll be adding Books, Crooks and Counselors to those bibliographies, too.
Thanks, Chris, for the compliment and for the reference to Michael Groetsch’s book and your own. Excellent references for writers of all variety of fiction.
hi, thank you for providing information on such an important topic. However, I feel compelled to respectfully disagree with just one aspect of your article. You describe that most prosecutors will not request a no contact order (we call them stay away orders) if the victim doesn’t want them. Speaking as a prosecutor in the Bay Area, we routinely asked for stay away (no contact) orders even when the victims don’t want them because are concerns for their safety outweigh our fear of alienating them. I don’t think the Bay Area is unique. WIth increasing awareness of the rates of homicide associated with domestic violence, I would guess that in most jurisdictions the Deputy DA’s would request a stay away order as a matter of routine.
Karen, thanks for the observation–I’m glad to hear it. (I was referring more specifically to situations where the victims intend to take the abuse back or otherwise stay in contact.)